Hj and Others v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2425/2018

[2020] HKCFI 1561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2425 OF 2018

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J U D G M E N T

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THE APPLICATION

1.The Applicants are members of a family, the 1^st Applicant being the father, the 2^nd Applicant being the mother, the 3^rd Applicant being the son, the 4^th Applicant and the 5^th Applicant being the daughters.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 31 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.By Order of the Court dated 1 November 2018, this is a rolled‑up hearing of two applications:

(1)    application for leave to apply for judicial review of the Board’s Decision; and

(2)    substantive judicial review application.

4.The Applicants are represented by Mr Geoffrey Yeung, Counsel, instructed by Messrs Daly & Associates.  The Director of Immigration (the “Director”), the putative interested party is represented by Ms Leona Cheung, Acting Deputy Law Officer and Ms Hikki Wong, Acting Senior Government Counsel of the Department of Justice, the putative respondent being neutral in these proceedings.

The Applicants

5.The Applicants are a family of five from Jordan.  The 1^st Applicant first arrived in Hong Kong from Jordan using his Jordanian passport in October 2011.  He made numerous trips between Hong Kong and Mainland between October 2011 and November 2013.  He last arrived in Hong Kong on 25 November 2013, overstayed, and made a non‑refoulement claim by way of written signification on 5 March 2014.  Three months later on 21 June 2014, his wife and children (the 2^nd to 5^th Applicants) arrived in Hong Kong using their Jordanian passports.  They too made non‑refoulement claims, relying on the 1^st Applicant’s case as the lead case, asking that their claims be assessed together,which the Director and the Board did.

6.The Applicants claimed that if refouled, they would be harmed or killed by a former employee of the national agency (“M”).  Further, the 1^st Applicant claimed that he would be arrested by the police of Jordan in connection with a dishounoured cheque case and his failure to pay the income tax.  They rely upon the facts below.

(1)    The 1^st Applicant, an accountant, worked for a charitable organization with public fund (“IAS”) from November 2005 to May 2007.  During his employment, he found out about embezzlement of funds, which went towards personal and entertainment expenses of the IAS Council and the executive staff. He disapproved and refused to sign four or five cheques in protest.  Thereafter, M “attempted to befriend him”.  He resigned in May 2007.

(2)    A year and 4 months before his resignation, on 3 January 2006, the 1^st Applicant set up his own business importing seafood.  His business was “extremely successful”.

(3)    After the resignation, M continued to pester him and warned him not to disclose anything about IAS to outsiders.  M also wanted to become a partner in the 1^st Applicant’s business.  The 1^st Applicant refused, but M harassed him and caused disruption to his business.  The 1^st Applicant was eventually coerced into accepting his “offer” to be his business partner.  The business difficulties ceased.  With M’s influence and relationship with the Government, the business flourished and they made profits.

(4)    In June 2010, M introduced a new trader (“K”) to their company who was interested in buying a large amount of goods and wanted the company to import chocolate and red meat.  The business with K was satisfactory until one day the bank refused to honour K’s cheques.  M and the 1^st Applicant were eventually left with a large quantity of unwanted goods (chocolate and meat).  When he tried to distribute to other clients, M told the 1^st Applicant there were problems with the chocolates and the clients refused to purchase them.

(5)    The 1^st Applicant filed a complaint with the Jordanian police and went to court against K.  When K found out, he threatened to kill the 1^st Applicant. The 1^st Applicant then discovered that K was in fact a fugitive and was wanted for more than 11 offences.  He informed the police of K’s threats and asked them to arrest him at his home.  But when the police arrived, K’s wife told them K was not there.  M did not assist the 1^st Applicant, and the problems for his business began to re‑emerge.

(6)    The 1^st Applicant then left Jordan on his own for Guangzhou on 17 October 2011 where he opened a trading office.  His wife and children visited him twice during school holidays in 2012 and 2013.  While the 1^st Applicant was in China, M went to his father’s house with a man in military uniform asking for his whereabouts.  His wife claimed that they were being watched from time to time and there were cars following her when she took the children to school.  M also threatened the 1^st Applicant’s father telling him that the 1^st Applicant should return to Jordan and he had connections with people in China.

(7)    After two years in Guangzhou, in 2013, the 1^st Applicant was told by the Chinese Embassy that he was required to return to Jordan to obtain a new visa.  His passport was also approaching expiry and he was told by his father’s lawyers he should return to Jordan to renew it.  Without a valid visa, he was not allowed to remain in China.  He came to Hong Kong and lodged his non-refoulement claim.

(8)    The 2^nd to 5^th Applicants also claimed that they were “extremely frightened” and eventually travelled to Hong Kong on 21 June 2014.

The Director’s Decision

7.The Director considered their joint application in relation to the following risks:

a.      risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.      Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.      risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.      risk of persecution by reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By Notice of Decision dated 18 November 2016 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated.  The Director found that the level of risks of being harmed by M and the police of Jordan if they returned to Jordan was low [26]; that reasonable state protection was available to them [36] and that internal relocation was an option open to them [39].  As to the allegation that the 1^st Applicant would be arrested by police for non‑payment of his income tax, it was found that there was no evidence to show that he would be denied a fair trial in Jordan [39-43].  There was no evidence to show that BOR 2 risk was engaged [53].

The Board’s Decision

9.The Applicants jointly appealed to the Board against the Director’s Decision and they attended a hearing before the Adjudicator on 3 May 2018. The Applicants and the Director were respectively legally represented at the hearing.

10.The Board rejected the Applicants’ joint appeal and confirmed the Director’s Decision.

11.Having considered the evidence, the Board accepted the core facts in support of the 1^st Applicant’s claim.  However, the Board concluded that the 1^st Applicant attempted to rely on what was essentially an acrimonious business dispute between himself, M and K to establish that he and his family were owed protection obligations in Hong Kong. It did not accept that the Applicants were entitled to protection under any of the four non‑refoulement grounds.  See paragraphs 127‑149 of the Board’s Decision for detailed reasons.  The Board also referred to the Director’s findings as to state protection and relocation alternatives for the Applicants. See paragraph 70 of the Board’s Decision.

Application for leave to apply for judicial review

12.The Applicants filed Form 86 on 31 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.Counsel for the Applicants has raised two grounds in support of their application. 

(1)    The Board failed to assess whether the 1^st Applicant’s expressed intention not to expose the corruption was influenced by the threat of harm, which constituted an error of law (including a failure to apply the HJ (Iran) principle), a failure to take into account relevant considerations, and/or Wednesbury unreasonableness under a high standard of fairness.

(2)    The Board’s assessment of the evidence and inferences were based on a number of speculations and/or conjectures, which constituted an error of law and/or Wednesbury unreasonableness under a high standard of fairness; and/or failed to provide adequate reasons for the findings, which constituted procedural unfairness under a high standard of fairness.

14.In response to the first submission above, counsel acting for the Director submits that the HJ (Iran) principle is not applicable because the reason for the Board to reject the 1^st Applicant’s claim is that he had embellished the significance of his knowledge about IAS from some 11 years ago, and what he meant was merely “low level corruption” regarded as “usual practice”, which did not cause any real concern to the Jordanian authorities or persons at IAS.  Therefore, whether or not the corruption was exposed and the 1^st Applicant’s reason for not exposing the corruption are immaterial on the facts of this case.  The HJ(Iran) principle only applies to cases where the applicant has to forfeit his fundamental human right in order to avoid persecution risk.  In this case, the Applicants are not required to avoid being persecuted by not exposing the corruption.

15.As to the second submission above, counsel for the Director submits that the Board’s finding of the facts, viz the 1^st Applicant’s knowledge of embezzlement/corruption at IAS being low level and that the 1^st Applicant was not a high security threat was not speculation or conjectures and the Board had given reasons for such findings.  This is only the Applicants’ disagreement on the finding of the facts by the Board.

DISCUSSION

The relevant legal principles

16.In TK v Michael Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA, the Court of Appeal held:

“19. …The burden of proof rests on the torture claimant to prove that there are substantial grounds for believing that he would be in danger of being subjected to torture: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 51.

20. …Such high standards of fairness require that the torture claimant be given ‘every reasonable opportunity to establish his claim’: para 51.

22. …High standard of fairness may therefore require the Director to conduct investigation and obtain relevant information and materials on general country conditions depending on the facts and issues raised in a case.

23. …whereas under the enhanced screening mechanism, a torture claimant is represented and assisted by the Duty Lawyers Scheme. Within reasonable bounds, the torture claimant’s side is expected to conduct its own investigation and obtain information and materials that it requires to prove its case. Ultimately, the matter boils down to commonsense and fairness.

25. …High standards of fairness certainly do not entitle the torture claimant, having stated a claim, ‘to simply sit back and require the Director to disprove it’. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of ‘joint endeavour’. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.

32.    …if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the ‘internal relocation alternative’), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.”

17.In Nupur Mst v Director of Immigration [2018] HKCA 524, the Court of Appeal held at paragraph 14:

“(1) …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board…”

18.The Court will bear in mind that the Board’s Decision must be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the Applicants.  Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 §45.

The arguments on Ground 1

19.Counsel for the Applicants complains that having accepted that the 1^st Applicant had knowledge of corrupt practices, it is incumbent upon the Board to enquire why the 1^st Applicant did not intend to expose the corrupt practices, following the HJ (Iran) principle.  He further complains that the Board had failed to find that the knowledge of corrupt practices should be regarded as political opinion, which should be allowed to be expressed without fear of persecution, and it failed to make finding as to such release of political opinion would be persecuted in Jordan, again following the HJ (Iran) principle.

20.The Director’s argument is that the Board’s reasons for rejecting the Applicants’ claim is on different fact, ie the embezzlement was low level corruption or usual practice, which would not bother the IAS and therefore would not cause genuine fear of risk to the 1^st Applicant.

21.Counsel for the Applicants argues that low level corruption was only the Board’s speculation.  The challenge of the Board is that it had not taken the proper approach in its assessment of the 1^st Applicant’s complaint on prosecution because of his knowledge of the corrupt practice at IAS.  If the Board had failed to adopt the proper approach as laid down by HJ (Iran), its decision is Wednesbury unreasonable.

22.The UK Supreme Court has set out the criteria upon which HJ (Iran) principle should be engaged.  Lord Rodger of Earleferry JSC summarized the facts of the case in paragraph 40 of the judgment:

“A gay man applies for asylum in this country. The Secretary of State is satisfied that, if he returns to his country of nationality and lives openly as a homosexual, the applicant will face a real and continuing prospect of being beaten up, or flogged, or worse.”

23.Here the fundamental right was identified, which is the right of living openly as a homonsexual.  His right would be forfeited by being beaten up, or flogged or worse.  The consequences are obvious.

24.In my view, in order to engage HJ (Iran) principles, it is incumbent upon the Applicants, who were legally represented at the hearing before the Board, to establish the following TK [19]:

(1)    the 1^st Applicant’s fundamental human right was to be forfeited, identifying 1^st Applicant’s fundamental human right;

(2)    the way in which his fundamental human right was forfeited amounted to persecution within the context of Article 1A(2) of the Convention; and

(3)    the consequences of forfeiture of his fundamental human right.

25.The 1^st Applicant has not stated his fundamental right that would be forfeited.  If the 1^st Applicant would rely upon his freedom of speech, he has not been able to identify what form of speech he was referring to: making public statement, writing article in newspaper or making a report to the relevant authority in Jordan.  The 1^st Applicant only stated that he would be harmed by the members of IAS, some of whom were retired Prime Ministers.  However, there is no evidence to show that they are the state’s agents within the context of the Convention.  Lord Hope of Craighead DPSC said at paragraph 13:

“To constitute persecution for the purposes of the Convention the harm must be state sponsored or state condoned. Family or social disapproval in which the state has no part lies outside its protection.”

26.The HJ (Iran) case is about the claimants being denied their fundamental right to live openly and freely.  The claimants are homosexual men. Core identity as homonsexuals “are entitled to freedom of association with others of the same sex orientation, and to freedom of association with others of the same sex orientation and to freedom of self‑expression in matters that affect their sexuality, as people who are straight.”  Such freedoms are recognized as their fundamental human right.^[1]  They are regarded as a particular social group.^[2]  To equate homosexuality with knowledge of corruption is simply inappropriate.

27.The 1^st Applicant has not claimed to be a member of a particular social group or political opinion under Article 33(1) of the Refugee Convention.  He only argued that corruption of a public funded organization would be regarded as political opinion.  Even if the 1^st Applicant is right, there is no evidence to show that such political opinion against corruption would be persecuted by the Jordan Government.

28.It is not disputed that corruption is illegal in Jordan.  The 1^st Applicant can report the corrupt practices of the IAS to the authority.  If he reported to the authority, he should be protected by the state.  I note that there is country of origin information to say that state protection may not be provided. There is another set of opinion to say that state protection would be provided. I tend to accept that state protection should be provided if a person makes a report to the authority against someone else that he is corrupt.  This is simply logical for the authority to protect the witness.  Otherwise, it is quite impossible to enforce the law against corruption.  The Director has found that state protection was available to the 1^st Applicant. 

29.Counsel submitted in paragraph 44 of his submissions that it was partly because of the threat that would hang over the 1^st Applicant and also because of his family’s safety that the 1^st Applicant did not expose the corrupt practices.  However, there is no evidence of any violence ever done to him or to his family other than the verbal warning by M some 11 years ago.  Nor has the 1^st Applicant produced any evidence of the effects of such verbal warning on him such that they amounted to torture or persecution.

30.I find that the principles of HJ (Iran) are not engaged in this case.  Ground (1) fails.

The arguments on Ground (2)

31.Applicants’ counsel submits that the Board, in the finding of the facts or drawing inferences, had relied upon speculations without adequate reasons in the context of non‑refoulement claim.  In particular, he refers to the issues of:

(1)    the Board’s rejection of the 1^st Applicant’s suggestion that the sour relationship between the 1^st Applicant on the one part and M and K on the other part was due to the 1^st Applicant’s knowledge and disapproval of corruption at IAS;

(2)    it is unreasonable that the Board rejected the 1^st Applicant’s suggestion that M had caused troubles to his business for his knowledge of corruption simply because the Board considered that M could have adopted torture or other cruel practices as he was able to do in the General Intelligence Department if he considered that the 1^st Applicant was of high security threat; and

(3)    the Board’s speculation that the 1^st Applicant’s knowledge of the corruption was only of “low level embezzlement” or “low level corrupt practices” is without sufficient reason.

32.Counsel for the Director argues that whilst she accepts the approach for the assessment of credibility for non‑refoulement claim in ST v Betty Kwan [2014] 4 HKLRD 277 at [43], that is to say, a decision-maker must be cautious in rejecting a claim on the ground of implausibility because what may appear to be implausible in Hong Kong might be plausible in a different social, cultural and political context, she argues that the Board’s findings on the above issues are not based upon speculation, but on the facts found by the Board or the information supplied by the 1^st Applicant to the Board.  She also relies upon the legal principles that the burden is on the Applicants to prove their claims and that finding of the facts is for the Director and the Board as held in TK and Nupur respectively.

33.In my view, the approach for assessment of the credibility of the evidence in ST is only a reminder for the decision‑maker, itself not a legal principle or practice cast in stone.  The decision‑maker must exercise his or her common sense and legal knowledge in the assessment of the evidence. To say that the decision‑maker must accept the reasons or evidence of the claimant because of their different cultures or environment simply defies logic or reason.  The decision‑maker will be rendered useless in the assessment of the evidence.  There are, of course, occasions where the suggestions put forward by the claimant were rejected by the decision‑maker subjectively without taking into consideration of the local circumstances, including the local culture of the claimant.  It is in those circumstances that the decision-maker has to bear in mind the ST guidance.

34.If the Applicants complain that the Board failed its duty to make fair assessment of the evidence, the burden is on them to satisfy this Court with evidence.  However, they have not been able to adduce evidence to support their complaint.

35.It is quite obvious that the Board had given its reasons for the above findings.  It has taken into account the following facts, which were not disputed:

(1)    the 1^st Applicant’s evidence as to the duration of his employment with IAS, his knowledge of the corrupt practice, his refusal of issuing four or five cheques for the travel funds, mobile telephones, furniture and other personal items, his disapproval of such corrupt practice and his resignation;

(2)    the verbal warning of M;

(3)    the lack of harm during 4 years in Jordan after his resignation;

(4)    the joint business between himself and M with profits at the initial stage;

(5)    joining of K to run the business;

(6)    fall-out of their relationship;

(7)    no further harm to the 1^st Applicant other than nuisance in the 1^st Applicant’s business.

36.I agree with counsel for the Director that it is open to the Board to take into consideration of those evidence above in the assessment of whether IAS and M took a serious view of his possession of corrupt practices at IAS and whether such corrupt practices were only of low level embezzlement or low level corrupt practices, and having taken them into consideration, had come to its conclusions above, which the Applicants now complain.

37.Ground (2) fails too.

38.However, even if the Applicants’ arguments sustain, there is no dispute on the Director’s finding that state protection was available to them and that internal relocation was an option open to them.  The Board had confirmed the Director’s Decision.  As the Applicants do not dispute these two issues, their claims are doomed to fail.

39.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

40.The Applicants fail to show that they have any reasonable prospect of success in their proposed judicial review. 

CONCLUSION

41.As this is a rolled‑up hearing, I dismiss their joint application for leave to apply for judicial review and I also dismiss their application for judicial review of the Board’s Decision.

ORDER & COSTS

42.The parties have agreed the re‑amendments to Form 86, except for the costs of the application for re‑amendment.  Having considered the parties’ submissions, I order that the costs for the application for re‑amendment of Form 86, the costs for and occasioned by the re‑amendment, if any, be in the cause of the application for leave to apply for judicial review.

43.As I find that the Applicants fail to obtain leave to apply for judicial review and the judicial review proper, costs for the application for leave to apply for judicial review and the judicial review proper should be awarded to the Director.

44.There is no order as to costs for the Board.

45.The anonymity order is to be reviewed.  I have considered respective counsel’s submissions.  In view of my decision above, I consider that there is no reason for the said order to remain.  I order that this anonymity order shall be in force until 14 days from the date of this Judgment.

Mr Geoffrey Yeung, instructed by Daly & Associates, for the 1^st to 5^th applicants

Ms Leona Cheung, acting Deputy Law Officer and Ms Hikki Wong, acting Senior Government Counsel, of Department of Justice, for the putative interested party

Attendance of the putative respondent was excused